93 Decision Citation: BVA 93-03929
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-14 911 ) DATE
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THE ISSUE
Entitlement to service connection for the cause of the
veteran's death and entitlement to accrued service
connection benefits based upon a claim for service
connection for cancer by the veteran prior to his death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars
of the United States
ATTORNEY FOR THE BOARD
C. Lawson, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1970 to January
1972 and from August 1974 to August 1984. The Lincoln,
Nebraska, Department of Veterans Affairs (VA) Regional
Office (RO) denied service connection for kidney cancer in
January 1990 and for the cause of the veteran's death in
November 1990. A notice of disagreement was received in
November 1990. A statement of the case (SOC) was issued in
January 1991. A substantive appeal was received in February
1991. The case was received and docketed at the Board of
Veterans' Appeals (Board) in March 1991. Veterans of
Foreign Wars of the United States represents the appellant
on appeal and furnished an informal brief in June 1991. The
Board remanded the case to the RO in October 1991. The case
was again received and docketed at the Board in July 1992,
when the representative furnished a second informal brief.
The Board requested an opinion from a medical adviser to the
Board, which was provided in November 1992. The
representative was provided an opportunity for notice and
comment thereon, and furnished a third informal brief in
December 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that service connection is warranted
for the cause of the veteran's death, because his urinary
bladder or kidney cancer should be service-connected, and it
caused his death. He was exposed to trichloroethylene (TCE)
in service, and this could have caused these cancers.
Indeed, his private physician has rendered an opinion
supportive of the claim. While the Board has obtained a
contrary opinion from a medical adviser to the Board, there
is a valid difference of opinion, warranting an allowance
under the provisions of 38 C.F.R. § 3.105(b) (1991).
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
folder, and for the reasons and bases hereinafter set forth,
it is the Board's decision that service connection for the
cause of the veteran's death should be denied.
FINDINGS OF FACT
1. The veteran's death on December 24, 1989, was due to
carcinoma of the urinary bladder with liver metastases.
2. Neither urinary bladder cancer nor kidney cancer was
shown in service or to a degree of 10 percent within one
year after service discharge.
3. Neither has been adequately related to exposure in
service to TCE.
4. At the time of the veteran's death, service connection
was not in effect for any disabilities, and evidence did not
show entitlement to periodic monetary benefits which had not
been paid.
CONCLUSIONS OF LAW
1. Urinary bladder and kidney cancer were not the result of
disease or injury which was incurred in or aggravated by
service, and they may not be presumed to have been incurred
or aggravated in service. This includes for the purpose of
accrued benefits. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a)(1),
1113, 1131, 1137, 5121 (West 1991); 38 C.F.R. §§ 3.303,
3.307, 3.309 (1991).
2. A service-connected disability did not cause or
contribute substantially or materially to cause the
veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R.
§ 3.312 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before we may discuss the appellant's claim on the merits,
we must first determine whether it is well grounded. We
conclude that it is, as it is plausible. Gilbert v.
Derwinski, 1 Vet.App. 49 (1990). Accordingly, we must
determine whether the VA has met its duty to assist the
appellant under 38 U.S.C.A. § 5107 (West 1991). We conclude
that it has. The Board remanded the case. While the
information sought was not obtained, an opinion from a
medical adviser to the Board rendered upon return of the
case to the Board satisfies development requirements.
The question to be addressed which must be resolved in the
appellant's favor in order to grant any of the benefits
sought is:
Does the evidence show that the veteran
developed kidney or urinary bladder cancer in
service or to a degree of 10 percent within 1
year of service discharge, or, alternatively,
was his cancer caused by in-service exposure to
TCE?
Service connection may be established for disability
resulting from disease or injury which was incurred in or
aggravated by service, 38 U.S.C.A. §§ 1110, 1131, or where a
malignancy is manifested to a degree of 10 percent within
one year of service discharge. 38 U.S.C.A. §§ 1101(3),
1110, 1112(a)(1), 1113, 1137. These standards are
applicable in cause of death service connection cases. 38
U.S.C.A. § 1310(a).
It is not argued, and the evidence does not show, that
urinary bladder or kidney cancer was shown in service or to
a degree of 10 percent within 1 year of service discharge.
Accordingly, the normal application of 38 U.S.C.A. §
1101(3), 1110, 1112(a)(1), 1113, 1131, and 1137, with 38
C.F.R. 3.303, 3.304, 3.307, and 3.309 would not permit an
allowance of the claim.
It is argued that an allowance is warranted under 38
U.S.C.A. §§ 1110 and 1131, however, perhaps through 38
C.F.R. § 3.303(d), because the veteran was exposed to TCE in
service, and this later caused his fatal cancer. The
provisions of 38 C.F.R. § 3.303(d) provide that service
connection may be granted for any disease diagnosed after
service discharge when all of the evidence, including that
pertinent to service, establishes that it was incurred in
service.
The veteran's death certificate states that he died in
December 1989 at his residence from carcinoma of the urinary
bladder with liver metastasis. No autopsy was performed.
He was 39 years old.
Attempts have been made to do so, but the amount and type of
any possible exposure to TCE that the veteran had in service
have not been documented. One of his military occupational
specialties was as a materiel storage handling specialist
76V20. The veteran had transitional cell carcinoma of the
left kidney and urinary bladder. See the December 1988 and
April 1989 Vista Hills Medical Center tissue reports. It
was felt that the bladder tumor probably represented a
primary tumor, rather than one metastatic (spread) from the
previous transitional cell carcinoma of the left kidney.
Id. He thereafter underwent treatment for the bladder tumor,
which was unsuccessful, as reflected by the death certifi-
cate. The urinary bladder cancer spread to the liver, and
he died. He did not have "liver" cancer in the proper sense
of the term, but urinary bladder cancer which was metastatic
to the liver.
His private physician, Murray M. Vann, M.D., wrote 2 letters
in December 1989. It was stated that the appellant had
developed multifocal transitional cell carcinoma of the
urinary tract with probable separate primaries in the left
kidney ureter and bladder and metastatic disease to the
liver, which on biopsy had been transitional cell
carcinoma. It was stated that it was impossible to be
absolutely certain of the cause, but there was noted a
strong history of association between transitional cell
carcinoma and chemical carcinogens, particularly organic
solvents and benzene derivatives, aniline dye derivatives,
and multiple other organic chemicals. It was noted that the
veteran had had a long history of exposure to TCE solvent in
the armed forces, generally without the benefit of protective
clothing. Dr. Vann stated the TCE had a "strong history of
association with both liver and kidney problems." It was
believed the veteran's transitional cell carcinoma metastatic
to the liver "is most probably related in a cause and effect
basis to his work exposure to Trichloroethylene."
The veteran and the appellant have submitted copies of
excerpts from National Institute of Occupational Safety and
Health Occupational Safety and Health Administration
literature which states that TCE can cause irritation of the
nose and eyes, central nervous system depression, and liver
and kidney damage.
A medical adviser to the Board reviewed the veteran's claims
folder in November 1992 and rendered a medical opinion. It
was noted that the veteran's cause of death was carcinoma of
the urinary bladder with liver metastasis for about 3 month.
There was noted a hospital examination record of September
1987 from Alfonso Chavez, M.D., which stated that the
veteran had not been exposed to any toxic substance, and
that he did not take salicylates, smoke, or drink alcoholic
beverages. (Dr. Chavez' September 1987 report also
indicates that the veteran had had a history of gross
hematuria for only the last 3 1/2 weeks -- ed.)
The medical adviser noted a September 1987 report of a
needle biopsy of the left kidney diagnosed IgM
mesangionephropathy. There was noted a record showing that
in December 1988, a filling defect of the left upper pole of
the kidney was described. A left nephrectomy was performed
later in December 1988, and there was a large papillary
transitional cell carcinoma of the upper portion of the
kidney pelvis. It was further noted that in March 1989, a
transitional cell grade II carcinoma of the urinary bladder
was removed. A document dated in August 1987 stated that
the veteran had a history of exposure to cleaning solvents
while in the Army. He did not smoke. He had not been a
long-term, high-dose saccharin user. There was no family
history of bladder tumor. He did not work in the tanning or
dyeing industry. He was unaware of other risk factors for
bladder tumor.
The medical adviser also reviewed Dr. Vann's December 1989
letters.
The medical adviser noted that moderate exposure to TCE in
humans can cause symptoms similar to alcohol inebriation.
Higher concentrations could have a narcotic effect. (The
veteran was not treated for any of these symptoms in
service, nor for any listed in the literature the appellant
(and the veteran) submitted. It was noted that deaths had
occurred after heavy exposure, from ventricular fibrillation.
He noted that liver injury was not definitely established in
occupational exposure, but that TCE had been found to induce
hepatocellular (liver cell) carcinoma in mice in National
Cancer Institute tests. It was noted that it was used in
degreasing and cleaning. This information was obtained from
Budavari, The Merck Index: An encyclopedia of chemicals,
drugs, and biologicals (11th ed.), 1516-1517.
It was noted that causes of transitional cell carcinoma of
the renal pelvis included abuse of compound analgesics
(phenacetin, phenazone, and caffeine), renal papillary
necrosis, Balkan nephropathy, and occupation in aniline dye,
textile, plastics, and rubber industries. There is a
significant increase in risk for upper genitourinary tract
urothelial cancer in smokers. (The veteran indicated in
statements and medical history when treated that he was not
a smoker.) Chronic inflammation and irritation are
associated with the development of renal pelvic tumors,
particularly in patients who have upper urinary tract
stones. Transitional cell carcinoma of the ureter has an
increased incidence associated with Balkan nephropathy,
prolonged exposure to phenacetin, or prolonged exposure to
environmental agents such as aniline dyes. DeVita, Cancer
Principles and Practice of Oncology (3rd ed. 1989), 998-999,
was his source.
It was stated that TCE is not associated with transitional
cell carcinoma of the renal pelvis or the ureter. It was
stated that TCE was not included in the causes of transi-
tional cell carcinoma of the renal pelvis or ureter (part of
the urinary bladder). It was stated that evidence of record
associating the veteran's death or cancer to TCE was not
supported by the medical literature.
The medical advisor considered medical opinion was that the
veteran's exposure to TCE in service did not cause his
cancer. He based his opinion on a review of the entire
record, research of the medical literature, and clinical
experience.
The appellant's representative has requested consideration
of 38 C.F.R. § 3.105(b). That regulation does not apply,
however. It was promulgated as a means of revising rating
decisions which had become final, and such is not the case
here. Moreover, it was promulgated to apply to rating
decisions, not medical opinions. What the representative
might have meant to argue, and what the Board must consider,
is that the VA should find in favor of the appellant because
there are two opposing medical opinions of equal weight, and
that given a relative equipoise of the evidence, the
appellant should be afforded the benefit of the doubt per 38
U.S.C.A. § 5107(b) (1991). The Board does not find that
they are of equal weight, however. There is no evidence
that Dr. Vann did an indepth inquiry into the issue of
causation as the Board Medical Adviser did, and it appears
that Dr. Vann's opinion is not supported by the medical
literature and is based on history furnished by the veteran
rather than a review of the record and literature.
The medical advisor's opinion is more probative and entitled
to more weight in view of the foregoing. It is more
specific, because he discussed cancer rather than
"problems," says why he believes that there is no
relationship, and has consulted medical literature which is
supportive of his opinion. Dr. Vann does not cite medical
literature to support his opinion that TCE in particular
caused the veteran's cancer. He says only that some organic
solvents and benzene derivatives (TCE is one of many benzene
derivatives -- ed.) are associated with transitional cell
carcinoma. He does not say that TCE is one of those, nor
does he offer medical authority that it is. The literature
that has been submitted says only that TCE can cause kidney
and liver "damage." The veteran had no treatment for such
damage in service, nor for bladder "damage" symptoms, nor
for acute symptoms of overexposure to TCE, such as narcosis
or inebriation effect. No kidney damage was shown in
service, and the damage the veteran sustained to his liver
shortly prior to his death was indirect, from metastasis of
urinary bladder cancer.
Accordingly, the Board must conclude that any in-service TCE
exposure did not cause the veteran's kidney or bladder
cancer. Therefore, service connection for the caused of
death is not warranted.
Since there were no period monetary benefits to which the
veteran was entitled at death under existing ratings,
decisions, or evidence in the claims folder at the date of
the veteran's death, due and unpaid, entitlement to accrued
benefits is not shown. 38 U.S.C.A. § 5121.
ORDER
Service connection for the cause of the veteran's death and
entitlement to accrued service connection benefits based
upon a claim for service connection for cancer by the
veteran prior to his death are denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
J. E. DAY (MEMBER TEMPORARILY ABSENT)
SAMUEL W. WARNER
CONTINUED ON NEXT PAGE
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.